February 17, 2011
Following a Sacramento County gang-related murder trial, some of the jurors elected to stay in touch by becoming “friends” on Facebook. Shortly thereafter, one of the jurors noticed that the plaintiff, (who happened to be the jury’s foreman), posted comments about evidence during the trial.
After an evidentiary hearing on the misconduct claim, counsel for the defendants in the murder trial issued a subpoena to Facebook. However, Facebook politely suggested they secure the sought-after posts from Juror Number One himself. Unwilling to hand over the private posts, the plaintiff attested the subpoena violated his privacy rights under the California Constitution, as well as the Electronic Communications Privacy Act.
On February 4, 2011, Judge Michael Kenny, who presided over the murder trial, quashed the subpoena and instead ordered that Juror Number One: “within 10 days from the date of this order … execute a consent form sufficient to satisfy the exception stated in Title 18, U.S.C. section 2702(b) allowing Facebook to supply the posting made by Juror #1 during trial.” If he refuses to comply, he faces contempt.
On February 8, 2011, Juror Number One filed a Petition for Writ of Prohibition and Request for Immediate Stay, which was denied on February 10.
The plaintiff claims Judge Kenny’s February 4 Order violates the Fourth and Fifth Amendments, in addition to privacy rights under the ECPA and the California Constitution. Further, he argues he was not given a realistic amount of time to secure the permission of his fellow Facebook connections to disclose their private communications.
The plaintiff seeks determination that Judge Kenny’s February 4, 2011 Order is “invalid and unenforceable.” He also seeks judgment restraining and rejoining Facebook, Inc. from supplying the posts he made during the criminal trial.
What’s your take? When social media and murder trials collide, what’s fair game, and what deserves to be kept under lock and key?
For more current “Hot Docs” like this one, plus timely news and analysis of litigation developments around the country, be sure to check out the Westlaw News & Insight – National Litigation website.